KOEHLER & KOEHLER

[2016] FamCA 60

FAMILY COURT OF AUSTRALIA

KOEHLER & KOEHLER [2016] FamCA 60

FAMILY LAW – CHILDREN – Jurisdiction – where previous proceedings instituted by the State Central Authority at the request of the father for the return of the child have been dismissed – consideration of whether the child is habitually resident in Australia pursuant to s 111CD of the Family Law Act 1975 (Cth) – where the child has lived in Australia for two years and the evidence indicates she is settled in Australia – finding that the Court has jurisdiction

FAMILY LAW – CHILDREN – Best interests – where the mother seeks to proceed on an undefended basis for parenting orders – where the father has failed to comply with orders and did not appear at the final hearing – where the father has instituted criminal proceedings in Germany that prevent the mother from returning to Germany without being arrested – where the mother alleges that the father poses a risk to the child – where the orders proposed by the mother will facilitate the father spending time and communicating with the child in Australia and via Skype – final orders made that the mother have sole parental responsibility and that the father spend time with the child in Australia

Australian Passports Act 2005 (Cth)
Convention on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Child, signed at The Hague on 19 October 1996
Family Law Act 1975 (Cth)

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT: Ms Koehler

RESPONDENT: Mr Koehler

FILE NUMBER: MLC 116 of 2014

DATE DELIVERED: 11 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

THE RESPONDENT: No appearance

Orders

1. That the applicant mother have sole parental responsibility for the child N, born …2008 (“the child”), save that the mother shall, prior to making the sole ultimate decision about any major educational or medical issues concerning the child:-

   (a)advise the respondent father in writing of the decision intended to be made;

   (b)seek the father’s written response in relation thereto;

   (c)consider by reference to the best interests of the child any such response prior to making any such decision; and

   (d)advise the father in writing as soon as reasonably practicable of her ultimate decision.

2. That the child live with the mother.

3. That the child spend time and communicate with the father as follows:-

   (a)On up to two occasions per calendar year in Australia, for up to 14 days or such other period that may be agreed between the parties from time to time, with such time to occur in Australia and to take place during the Victorian gazetted school holidays;

   (b)each Sunday for 1 hour via Skype from 7.00 pm to 8.00 pm AEST; and

   (c)at any other time as agreed between the parties.

4. That for the purposes of any time spent changeover shall take place at the Melbourne Airport or such other location as agreed, with the father to meet the cost of the child’s travel.

5. That the mother be at liberty to apply for an Australian passport for the child without the consent of the father.

6. That pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the child N born … 2008 is permitted to:-

   (a)       have an Australian passport; and

   (b)       travel internationally.

7. That within 7 days the mother serve upon the father by pre-paid post in a sealed envelope addressed to him care of his German lawyers, … (with a covering letter requesting that they bring that letter and enclosures to the father’s attention), to his last known address at C Street, F Town, Germany and to his email address … the following:-

   (a)       a sealed copy of these orders; and

   (b)       these reasons for judgment.

8. That no later than 28 days after service of these orders upon the father pursuant to order (7) hereof, service being deemed to have been effected 10 days after the documents are posted, the father file and serve any application seeking to set aside these orders and any affidavit in support of same together with an affidavit explaining the reasons for his failure to comply with orders made 17 July 2015 and his failure to appear on 5 November 2015.

9. That all extant applications be otherwise dismissed.

10. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Koehler & Koehler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 116  of 2014

Ms Koehler

Applicant

And

Mr Koehler

Respondent

REASONS FOR JUDGMENT

Introduction

1. The child N is aged seven years.  She has been the subject of litigation in Australia and Germany since January 2014. 

2. The child has lived in Australia since 21 December 2013, having travelled to this country for a vacation with her parents.  Following the separation of the applicant and the respondent during that visit, in January 2014 the father commenced proceedings in Germany with respect to divorce and parenting matters.  On the same date the mother filed an application for parenting orders in the Federal Circuit Court in Melbourne.

3. On 12 February 2014 proceedings were issued by the State Central Authority in this Court; that application sought the return of the child to her then place of habitual residence, Germany.  That application was filed at the request of the father who lives in Germany. 

4. On 30 May 2014, Macmillan J delivered judgment in respect of the proceedings commenced pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The orders made by Macmillan J dismissed the application of the State Central Authority. Although conceded by the mother in those proceedings that the child had been wrongfully retained in Australia, her Honour found that to return the child to Germany would expose her to a grave risk of psychological harm or otherwise place her in an intolerable situation. Accordingly, her Honour exercised the discretion in favour of the mother and refused to order the child’s return to Germany.

5. The child has continued to live with the mother in Melbourne since the determination of those proceedings.

6. On 21 January 2014 the mother’s pending parenting application was transferred by the Federal Circuit Court to the Family Court of Australia.  It was allocated to my docket in 2015. 

7. On 17 July 2015 I conducted a directions hearing at which I listed the matter for final hearing and made trial directions for the preparation of the matter.  The father did not appear at that hearing. That day I made orders (“the trial orders”) listing the matter for final hearing as a one-day matter on 5 November 2015, that the applicant file her trial affidavit material by 21 August 2015 and that the respondent file his trial affidavit material by 11 September 2015.  Further, pursuant to paragraph 9 of the trial orders I required that the applicant cause a sealed copy of the orders and documents filed on her behalf pursuant to those orders to be served on the respondent by registered post and to his email address.  Paragraph 7 of the trial orders provides that should either party fail to comply with the trial orders or any directions of the docketed registrar the party who has complied may seek to have the matter proceed on an undefended basis. 

8. The affidavit of the mother’s lawyer, Annelis Bos, filed 5 November 2015 confirms that in compliance with the trial orders she forwarded to the father and his German lawyers an email and registered letter on 21 August 2015 serving a copy of the trial orders and the mother’s trial affidavits relied upon in support of her application.  Ms Bos deposed that she has received no response from the father or his lawyers in relation to the email and letter sent.  The mother’s Amended Initiating Application filed 9 June 2015 was served on the father by post and email on 9 June 2015 (Exhibit A1). Accordingly, I am satisfied that the father has been accorded with procedural fairness with respect to the mother’s application; he has had more than four months’ notice of the orders sought by the mother and more than two months’ notice of the evidence relied upon by her in support of her application.

9. The father has filed no affidavit material in compliance with the trial orders.  The father was called at the commencement of the hearing and did not answer the call.  The father has not participated in these proceedings since mid-2015.  His lawyers filed a Notice of Ceasing to Act on 9 June 2015.  That Notice informed the father of the next court event, being the first day hearing before me on 17 July 2015 at which there was no appearance by him or on his behalf.

10. Having regard to that history and the failure of the father to appear at the hearing, I granted leave for the mother to proceed with her application for final parenting orders on an undefended basis.  These are my reasons for judgment with respect to that application.

The parties

1. The mother is aged 36 years.  She was born in Country H and migrated to Australia in 1992 when she was 13 years of age.  She is an Australian citizen.  She is employed as a personal assistant.  She lives in Suburb J with the child of the relationship.

2. The father is aged 62 years.  He lives in Germany. 

3. The parties met in Country G in 2001 and commenced a relationship in or about July 2003.  The parties married in Germany in 2006.

4. There is one child of the relationship, N who is aged seven years.  The child was born in Germany and has dual German and Australian citizenship. 

5. The parties separated on a final basis on 26 December 2013 whilst in Australia. 

The mother’s application

1. The mother relies upon the following material in support of her application:-

   ·Amended Initiating Application filed 9 June 2015;

   ·Affidavit of the mother filed 21 August 2015;

   ·Affidavit of Ms A filed 21 August 2015; and

   ·Affidavit of Annelis Bos filed 5 November 2015.

2. The orders sought by the mother in her Amended Initiating Application are as follows:-

   3.That the Applicant wife have sole parental responsibility for the child [N], born … 2008 (“the child”), save that the wife shall, prior to making the sole ultimate decision about any major educational or medical issues concerning the child:

   (a)Advise the husband in writing of the decision intended to be made;

   (b)Seek the husband’s written response in relation thereto;

   (c)Consider by reference to the best interests of the child any such response prior to making any such decision; and

   (d)Advise the husband in writing as soon as reasonably practicable of her ultimate decision.

   4.That [the child] live with the applicant wife.

   5.That [the child] spend time and communicate with the husband as follows:

   (a)In Australia for up to 14 days, on not less than two occasions per calendar year, or such other period that may be agreed between the parties from time to time, with such time to occur in Australia and to take place during the Victorian gazetted school holidays;

   (b)Each Sunday for 1 hour via Skype from 7.00pm to 8.00pm AEST; and

   (c)At any other time as agreed between the parties.

   6.That for the purposes of any time spent changeover shall take place at the Melbourne Airport or such other location as agreed, with the husband to meet the cost of [the child’s] travel.

   7.In the event that the Court determines that the child spend time with the husband in Germany, [the child’s] travel to Germany is subject to and conditional upon the following:

   (a)Within 30 days of the date of these Orders the husband provide documentary proof to the wife:

   (i)     That he has registered the Order of this Court in a court of competent jurisdiction in Germany pursuant to Article 26 of the Convention on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Child (“the Child Protection Convention”);

   (ii)    That he has obtained from a court of competent jurisdiction in Germany a declaration pursuant to Article 26 of the Child Protection Convention that these orders are enforceable;

   (b)The husband must not pursue any form of criminal proceedings or sanctions against the wife arising from her wrongful retention of [the child] in Australia and he will provide written confirmation that the proceedings commenced in Germany against the wife in April 2014 have been withdrawn;

   (c)The husband discontinue any application he has in Germany seeking parenting orders in relation to [the child] and be restrained from commencing any further proceedings;

   (d)The child being of an eligible age to travel to Germany unaccompanied;

   (e)At least 30 days prior to each occasion [the child] travels to Germany, the husband:

   (i)     Pay to the wife’s solicitors $50,000.00 security to be held by those solicitors in a controlled monies account, to be repaid to the husband if the child is returned to Australia in accordance with these orders, or if the child is not so returned, to be applied in payment of the wife’s expenses incurred in seeking the child’s return to Australia, including legal costs and disbursements in Australia and Germany and travel and accommodation costs incurred in travelling to seek [the child’s] return; and

   (ii)    Provide the wife with a copy of the child’s itinerary and return airfares.

   8.In order to facilitate [the child’s] travel overseas, the wife must provide the husband a copy of [the child’s] Australian Passport within a time to enable the husband to book airline tickets for the child, and otherwise no later than 45 days prior to [the child’s] departure date.

   9.The wife be at liberty to apply for an Australian Passport for [the child] without the consent of the husband.

   10.This is an order permitting the child to travel internationally pursuant to Section 11(1)(b) of the Australian Passports Act 2005.

   11.This is an order that provides for an Australian Passport to be issued for the child pursuant to Section 11(4)(b)(i) of the Australian Passport[s] Act 2005.

   …

   14.Pursuant to these orders the husband does not have parental responsibility for the child [N] born … 2008 and is not responsible for the child’s long-term or day-to-day care, welfare and development.

3. Given the father’s failure to participate in the proceedings, I was informed by counsel appearing for the mother that the mother did not press her application for orders in the terms of paragraphs 7 and 8 of her Amended Initiating Application.

Background

1. The parties commenced cohabitation in Germany in 2003.  At that time the father was employed by Company I and as a result regularly travelled to Asia, Australia and the Pacific region.  The mother resigned her employment in Australia to join the father in Germany.  She deposes that at that time the father agreed that he would obtain a transfer to Australia but that the parties would need to live in Germany for at least 12 months.

2. The mother deposes that upon arriving in Germany she found life difficult.  She did not speak any German and was unable to work in Germany until after the parties had married.  The mother deposes that she felt isolated being so distant from her friends and family in Australia. 

3. The father divorced his previous wife in September 2006.  The parties married in Germany in 2006.  Upon their marriage, the mother commenced working in Germany for Company I. 

4. The child was born in 2008.  The mother deposes that following the child’s birth, the father sought to limit the mother’s contact with her family in Australia.  She deposes that the father controlled her use of the computer.  Further, the mother alleges that the father was critical of the mother and her parenting.  As a result, the mother deposes that she was depressed.  The father refused to permit the mother to attend a counsellor or a psychologist regarding her symptoms. 

5. The mother also alleges that the father often consumed alcohol to excess and that when under the influence of alcohol, his behaviour towards her was abusive.  In 2010, the father’s driver’s licence was suspended for almost two years as a result of a drink-driving conviction. 

6. During a visit to Australia in January 2011 the mother attended upon a psychologist, Ms A for counselling.  The mother had three counselling sessions with Ms A during that visit.

7. The mother deposes that whilst in Australia, she sought legal advice and her former solicitors wrote a letter to the father informing him of her intention to separate from him.  The mother deposes that following his receipt of that letter, the father telephoned her and begged her to return to Germany.  The mother did return to Germany.  It is her evidence that upon her return, the father was very angry with her, threatened to have her institutionalised and to take the child away from her.  The father refused to permit the mother to have any on-going psychological treatment and insisted that she cease taking the anti-depressant medication she had been prescribed whilst in Australia.

8. The mother deposes that through 2012 and 2013 her health deteriorated and that there were occasions when she was simply unable to get out of bed.

9. On 21 December 2013 the parties and the child travelled to Australia to stay with the mother’s family for a holiday.  The mother deposes that the father’s behaviour towards she and her family was “appalling” during that visit and that there were a number of disagreements which culminated in the father threatening that he would take the child back to Germany and that the mother would never see the child again.  The father had removed from the mother’s handbag both the mother’s passport and the child’s passport.  Following a confrontation between the mother, her sister and the father regarding his removal of the passports and his stated intention to take the child to Germany, the police were called to the property and the father was removed by the police.  The mother made an application for an intervention order the following day.

10. On 8 January 2014 the mother filed an Initiating Application in the Federal Circuit Court of Australia seeking orders for property settlement and parenting orders in respect of the child.  

11. On 12 February 2014 proceedings were commenced by the State Central Authority seeking the return of the child to her place of habitual residence, Germany.  That application was dismissed by Macmillan J on 30 May 2014. 

12. The mother’s parenting application was transferred for hearing to the Family Court of Australia.  On 16 July 2014 Senior Registrar Fitzgibbon made orders by consent which provide that the father spend time with the child by Skype each Sunday between 4.00 pm and 5.00 pm.  The parties were also ordered to attend upon a Family Consultant for the purposes of the preparation of a Child Inclusive Assessment. 

13. Further orders were made on 26 September 2014 by consent which provided for the child to spend time with the father between 30 October 2014 and November 2014, that time to be spent in Melbourne and Sydney.  Additional time was ordered between 30 March 2015 and 12 April 2015, that time also to be spent in Sydney.

1. On 23 April 2015 I made orders for the parties to file amended applications in anticipation of the first day of hearing before me on 17 July 2015.  The father was to file his Amended Response to Initiating Application on or before 26 June 2015.  He has not complied with that order.

2. There was no appearance by the father at the first day of hearing before me on 17 July 2015.  That day I made the trial orders.

3. The father has not complied with the trial orders requiring him to file affidavit material upon which he seeks to rely by 11 September 2015.

4. Notwithstanding the proceedings in this Court, in early 2014 the father commenced proceedings in the German courts.  The issues before those courts relate to spousal maintenance, child maintenance and the return of the mother’s personal effects.

5. In addition to the family law proceedings, the father has initiated a criminal prosecution of the mother in the German courts in respect of her removal of the child from Germany.  Those proceedings were commenced by the father in early-2014.  At this time, the mother is unable to travel to Germany for fear of being arrested.

6. Since the orders made 16 July 2014, the father has communicated with the child by Skype for one hour each Sunday.

7. Pursuant to the orders made 26 September 2014 the father spent six nights with the child in October/November 2014.  the child also spent two weeks with the father in March 2015.  That time occurred in Sydney at the home of the father’s adult daughter.

8. Since her return to Australia, the mother and the child have lived with the maternal grandmother at her home in Suburb J.  In March 2015 the mother and the child moved to the maternal grandmother’s new home in Suburb J.

9. The child attends Suburb J School.  She commenced Prep at that school in 2014 and at the time of hearing was in Year 1.  the child is progressing well at that school and has established a large circle of friends.  the child is a member of the school choir and also attends private keyboard lessons.  She also attends swimming lessons and plays tennis. 

10. The child attends German language school each Saturday so as to maintain her German language skills and retain connection with her German heritage.

11. Since her return to Australia in December 2013 the mother has continued to consult Ms A, psychologist for treatment.  Ms A has prepared three reports in relation to her treatment of the mother, those reports being annexed to her affidavit filed 21 August 2015.  In her most recent report dated July 2015 Ms A confirms that there has been dramatic improvement in the mother’s functioning over the past 12 months, that the mother reports feeling significantly happier and more stable.  Ms A reports that there is no evidence of clinical depression, anxiety or stress in the mother outside what would be considered the normal range.

Does the Court have jurisdiction?

1. At the time the mother filed her application for parenting orders the child the child was present in Australia. Further, at that time, both the mother and the child had Australian citizenship. Accordingly, the mother was entitled to institute proceedings seeking parenting orders in accordance with the provisions of s 69E of the Family Law Act1975 (Cth) (“the Act”).

2. Division 4 Part XIIIAA of the Act governs how the Court is to proceed when dealing with an application for parenting orders in circumstances where the child the subject of that application is habitually resident in a country in which the Convention on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Child, signed at The Hague on 19 October 1996 (“the Child Protection Convention”) is implemented.  Germany is a Convention Country.

3. The mother’s application for parenting orders is an application for a Commonwealth personal protection measure as defined at s 111CA of the Act.

4. Section 111CE provides as follows:-

   A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CD(1)(a), (b), (c) or (d) to take a Commonwealth personal protection measure relating to a child if:

   (a)the child has been wrongfully removed from or retained outside a Convention country; and

   (b)an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

5. It is common ground between the parties that the child was wrongfully removed from Germany.  Pursuant to the orders of Macmillan J made 30 May 2014 the application of the State Central Authority for the return of the child to Germany was dismissed.  Hence, in accordance with Article 7.1(b) of the Child Protection Convention I am satisfied that there is no request for return still pending.

6. Section 111CD(1)(a) of the Act provides that a Court may exercise jurisdiction for a Commonwealth personal protection measure in relation to a child who is present and habitually resident in Australia.

7. The child has lived in Australia since December 2013, a period of more than two years and the application for her return to Germany was disposed of in May 2014, a period of more than 18 months ago.  She is enrolled at and attending school and all of the evidence before me indicates that she is well settled.  Accordingly, I am satisfied that the child’s place of habitual residence is Australia and that this Court has jurisdiction to entertain the mother’s application.

Parenting matters – the relevant legal principles

1. Section 60B(1) of the Act sets out the objects of Part VII of the Act. Those objects are to ensure the best interests of children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(2) sets out the principles underlying those objects.  They are that (except when it is or would be contrary to a child’s best interests):-

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The mother seeks parenting orders as defined pursuant to s 64B of the Act. That is, she seeks orders with respect to with whom the child is to live and spend time and the allocation of parental responsibility.

4. In determining a particular parenting order, the best interests of the child is the paramount consideration (s 60CA).  Section 60CC(2) and (3) set out the primary and additional considerations the court must consider in determining what is in the child’s best interests.  I will return to those considerations in detail below. 

5. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA).  The presumption relates to the allocation of parental responsibility.  It does not relate to the time the child spends with each parent.  Where there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child, or family violence the presumption does not apply (s 61DA(2).  Further the presumption may be rebutted if the court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child (s 61DA(4)).  For the reasons set out below, I am satisfied that the presumption is rebutted and that it is not in the child’s best interests that the parents have equal shared parental responsibility. 

6. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent (s 65DAA(1)) or substantial and significant time with each parent (s 65DAA(2)).  Given that I am satisfied that the presumption is rebutted and it is not in the child’s best interests that the parents have equal shared parental responsibility, the provisions of s 65DAA do not apply to this case. 

7. Findings are made on the balance of probabilities having regard to the evidence. Without limiting the matters that the court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the Court must take into account the following:-

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject matter of the proceeding; and

   (c)the gravity of the matters alleged.

8. The issues can most conveniently be discussed within the s 60CC considerations.  I will first consider the primary considerations under s 60CC(2).

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

9. Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents.  The question of what is a meaningful relationship was considered by Brown J in the decision of Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is “one which is important, significant and valuable to the child”.

10. In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-

    119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may be relevant.  We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents... 

    …

    122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.  No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

    (Original emphasis)

11. The child has been in the mother’s sole care since late December 2013.  As noted above, the father has had limited time with the child since that date, such time occurring following the making of interim orders by the Court.  The father continues to communicate with the child by Skype each weekend, but otherwise has not actively sought additional time with her since his lawyers ceased to act in mid-2015. 

12. The distance between the parents poses challenges to the child having the opportunity of a meaningful relationship with the father.  However, in circumstances where the father has not participated in the hearing and makes no application seeking additional time with the child, there can be little utility in attempting to craft orders for her to spend time with the father beyond those proposed by the mother; the Court can have little confidence that the father would avail himself of any additional time were it to make provision for such to occur. 

13. The mother seeks orders which will make provision for the child to spend time with the father should he travel to Australia.  Further, the mother proposes that the weekly Skype communication continue.  That application acknowledges the benefits to the child of maintaining a relationship with the father; whether a meaningful relationship can be fostered and maintained will depend upon the father’s commitment to actively seek time in accordance with those orders.

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

14. These proceedings commenced upon the mother’s Initiating Application filed 8 January 2014. Accordingly, the provisions of s 60CC(2A) apply. The Court is required to give greater weight to the consideration set out in s 60CC(2)(b) of the Act.

15. In her trial affidavit filed 21 August 2015 the mother deposes that prior to separation the father engaged in controlling and threatening behaviour.  For example at paragraph 19 of her affidavit the mother deposes that the father threatened to place her in a mental institution and that he would say to her things such as:-

    Life would be better if you weren’t around.  You’re a burden on our family.  You are repulsive.  [The child] would be better off without a mother like you. 

16. Further, the mother deposes that the father threatened to take the child away from her.  At paragraph 20 of that affidavit the mother deposes that the father at times would consume alcohol to excess and that during such periods his abusive behaviour was heightened.  The mother’s evidence was not challenged.

17. Following the parties’ separation the mother obtained an interim intervention order in the Magistrates' Court of Victoria. 

18. The orders proposed by the mother will ensure that the child continues to live with her and will have limited periods of time with the father.  I am satisfied that those proposals appropriately protect the child from the risk of being subjected or exposed to abuse, neglect or family violence. 

19. There is no suggestion in the mother’s evidence that the father has ever abused or threatened the child or placed her at risk of physical harm and she does not seek orders that the father’s time be supervised. 

20. I must now consider the additional considerations pursuant to s 60CC(3).

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

21. The child is aged seven years.  Accordingly, I am satisfied that little weight can attach to any views expressed by her. 

    (b)the nature of the relationship of the child with:

    (i)each of the child’s parents; and

    (ii)other persons (including any grandparent or other relative of the child);

22. Macmillan J found at paragraph 35 of her judgment dated 30 May 2014 that the mother “is and has been the child’s primary care-giver”.  Further, her Honour found that until his return to Germany on 28 December 2013, the father had a close and loving relationship with the child. 

23. Since that time the mother has continued in her role as the child’s primary care-giver and the father has had only two occasions of time with the child in Australia, being six nights in October/November 2014 and two weeks in March/April 2015.  The only other communication that the father has had with the child has occurred on a weekly basis via Skype.  The mother deposes in her trial affidavit that generally, that form of Skype communication has progressed well although there have been occasions of concern when the mother believed the father to be intoxicated.  The mother deposes that she monitors those Skype communications but otherwise does not intervene. 

24. The mother and the child live with the mother’s mother, that is, the child’s maternal grandmother.  The maternal grandmother assists the mother with the care of the child, caring for her when the mother attends work and assisting and transporting the child to her various extra-curricular activities.  The mother deposes that the child has a comfortable and close relationship with both her mother and sister. 

    (c)the extent to which each of the child’s parent has taken, or failed to take, the opportunity:

    (i)To participate in making decisions about major long-term issues in relation to the child; and

    (ii)To spend time with the child; and

    (iii)To communicate with the child

25. As noted earlier, the father had spent limited time with the child in Australia.  However, to his credit, he has continued to communicate with the child via Skype on a weekly basis. 

26. Since the father’s return to Germany in December 2013, the mother has otherwise been responsible for all aspects of the child’s long-term and day-to-day care. 

    (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child

27. The father has not paid child support for the child in accordance with the assessment provided by the Child Support Agency.  At the time of the hearing the arrears of child support payable by the father exceeded $5,000.

28. Accordingly, the mother has been solely responsible for the financial support of the child since the father’s return to Germany.  I am satisfied that the father has not fulfilled his obligations to maintain the child. 

    (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

29. The orders sought by the mother will ensure that there is no significant change to the child’s circumstances.  the child has been in the sole care of the mother since 28 December 2013 when the father returned to Germany.  The orders sought by the mother will ensure that the arrangements which have been in place since that time will continue.

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

30. The mother proposes that the existing arrangements for Skype communication continue.  The parties have been responsible for managing all expenses associated with that form of communication. 

31. There is no evidence before me from the father as to the impact of the mother’s proposals with respect to him spending time with the child in Australia.  However I note that the father has spent time with the child in Australia in 2014 and 2015.  There is no evidence before me which would indicate that that arrangement cannot continue or that there are difficulties with such arrangement continuing.

    (f)the capacity of:

    (i)each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

32. The mother has had sole care of the child since late-December 2013.  She has been responsible for providing all aspects of the child’s physical, emotional and intellectual needs since that time.

33. At the time of the hearing before Macmillan J in May 2014 the expert evidence of the mother’s treating psychologist, Ms A, and Dr E, psychiatrist was that the mother was likely to suffer ongoing anxiety and depression if she returned to Germany.  The evidence of Ms A at that time was that the mother had severe levels of depression and stress (as compared with other adults) and that her level of anxiety was rated as extremely severe. 

1. The evidence of Ms A is that the mother has continued to attend upon her for therapeutic counselling.  In her report dated July 2015 Ms A noted that:-

   … All indicators of [the mother’s] current mental health and wellbeing, both subjective and objective, are positive.  There has been a dramatic improvement in her biopsychosocial functioning in the past 12 months.  [The mother] reported feeling significantly “happier” and “more stable” than she has at any time in her recent history…

2. Later in her report Ms A observed that:-

   … There is currently no evidence of clinical depression, anxiety or stress outside of what would be considered “normal range” when compared with a general adult population using standardised psychometric assessment tools (BDI-II, DASS42).  This finding was supported by behavioural and cognitive indicators and general absence of physical symptoms associated with depression, stress and anxiety.

3. I accept the unchallenged evidence of Ms A. 

4. Having regard to that evidence I am satisfied that the mother is well-equipped to continue to meet all of the child’s emotional and intellectual needs as well as her physical needs. 

5. Not only has the mother attended to all aspects of the child’s physical care, to her credit she has ensured that the child continues to maintain a connection with her German heritage and culture by arranging for her to attend German school on a weekly basis.

6. The father is in arrears of child support.  He has not participated in these proceedings regarding the child’s future parenting arrangements since mid-2015. Meanwhile, the father has instituted criminal proceedings against the mother in Germany.  As a result, the mother is unable to travel to Germany without risk of criminal prosecution.  In my view, the father’s disengagement with these parenting proceedings and his pursuit of the criminal proceedings in Germany indicate that he has little insight as to the impact of those actions upon the child, which in my view are contrary to the child’s best interests.  The criminal prosecution and potential penalty of the mother can serve no useful purpose from the child’s perspective; it impedes the mother’s ability to travel with the child to Germany and may needlessly heighten the mother’s feelings of anxiety with the potential to adversely impact upon her parenting ability.  It is an action to punish the mother for her removal of the child from Germany and is driven by the conflict between the adults, rather than considerations as to what is in the child’s best interests. 

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

7. To the extent that these matters are relevant they are referred to earlier in the judgment.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

8. This consideration is not relevant to the matter.

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

9. I have addressed the issues with respect to family violence earlier in this judgment. 

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

10. The child has been the subject of litigation between her parents since December 2013 when separation occurred.  There can be no doubt as to the desirability of orders finalising the proceedings. 

11. In circumstances where the father has elected not to participate in these proceedings and has had extremely limited time with the child since December 2013, doing the best I can I am satisfied that the orders as sought by the mother are likely to provide the child with a period of stability absent the conflict between her parents. 

    (m)any other fact or circumstance that the court thinks is relevant.

12. There are no other relevant facts or circumstances.

Conclusion

1. The first matter that I am required to determine is the question of the allocation of parental responsibility.  The mother seeks an order that she have sole parental responsibility for the child, provided that the mother informs the father in writing of any decisions proposed to be made.  The orders as sought will provide the father with the opportunity to provide a written response to any proposal with respect to major educational or medical issues affecting the child and require the mother to consider his views prior to making such decisions.

2. In circumstances where the father continues to reside in Germany and has little involvement in the child’s day to day life, I am satisfied that the orders sought by the mother are in the child’s best interests.  The mother is best placed to make decisions regarding future schooling and medical issues given her intimate awareness of the child’s needs as primary caregiver and her proximity to the schools and services about which decisions may need to be made; the orders sought by her reflect the reality of the child’s living arrangements.  In my view it would be impracticable in those circumstances to order that the parties have equal shared parental responsibility.  Accordingly, I am satisfied pursuant to s 61DA(4) that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. 

3. The mother also seeks orders that the child live with her and that the child continue to spend time and communicate with the father on not less than two occasions per calendar year in Australia and by Skype each Sunday for one hour.  All of the evidence before me indicates that the child is settled and well cared for by the mother and supports the making of an order that she live with the mother.  To date, the father has travelled to Australia to spend time with the child on one occasion each in 2014 and 2015.  Given that history I propose to make orders for him to travel to Australia for up to two occasions each year; the husband works full-time and it is a significant burden upon him to order him to travel to Australia from Germany on two or more occasions each year, as sought by the mother.  It is to be hoped that the father will continue to spend time with the child.  From the child’s perspective it is important that the father continues to maintain his connection with her.  The mother proposes that any spend time changeovers occur at Melbourne airport or such other location as agreed.  To date the parties have managed arrangements with respect to changeover without issue.  The orders as proposed will ensure that that circumstance may continue.

4. The mother also seeks an order that she be at liberty to apply for an Australian passport for the child without the father’s consent and an order that the child be permitted to travel internationally pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth). Given that I will be making orders for the allocation of sole parental responsibility to the mother, she should be able to obtain a passport for the child without the consent of the father. Nonetheless in an excess of caution and to avoid any confusion, I will make orders as sought by the mother.

5. Given the failure of the father to appear, I will also make orders requiring the mother to cause a sealed copy of the orders and my reasons for judgment upon the father at his last known address, his German lawyers and by email.  I will provide the father with an opportunity to seek to set aside the orders, subject to him meeting certain conditions.  Such application must be made within 28 days of service of the orders upon him, with service being deemed to have been effected after 10 days of posting of documents by registered post.

6. Accordingly, the orders I make are as follows:-

   (1)That the applicant mother have sole parental responsibility for the child N, born … 2008 (“the child”), save that the mother shall, prior to making the sole ultimate decision about any major educational or medical issues concerning the child:-

   (a)advise the respondent father in writing of the decision intended to be made;

   (b)seek the father’s written response in relation thereto;

   (c)consider by reference to the best interests of the child any such response prior to making any such decision; and

   (d)advise the father in writing as soon as reasonably practicable of her ultimate decision.

   (2)That the child live with the mother.

   (3)That the child spend time and communicate with the father as follows:-

   (a)On up to two occasions per calendar year in Australia, for up to 14 days or such other period that may be agreed between the parties from time to time, with such time to occur in Australia and to take place during the Victorian gazetted school holidays;

   (b)each Sunday for 1 hour via Skype from 7.00 pm to 8.00 pm AEST; and

   (c)at any other time as agreed between the parties.

   (4)That for the purposes of any time spent changeover shall take place at the Melbourne Airport or such other location as agreed, with the father to meet the cost of the child’s travel.

   (5)That the mother be at liberty to apply for an Australian passport for the child without the consent of the father.

   (6)That pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the child N born … 2008 is permitted to:-

   (a)have an Australian passport; and

   (b)travel internationally.

   (7)That within 7 days the mother serve upon the father by pre-paid post in a sealed envelope addressed to him care of his German lawyers, … (with a covering letter requesting that they bring that letter and enclosures to the father’s attention), to his last known address at K Street, F Town, Germany and to his email address … the following:-

   (a)a sealed copy of these orders; and

   (b)these reasons for judgment.

   (8)That no later than 28 days after service of these orders upon the father pursuant to order (7) hereof, service being deemed to have been effected 10 days after the documents are posted, the father file and serve any application seeking to set aside these orders and any affidavit in support of same together with an affidavit explaining the reasons for his failure to comply with orders made 17 July 2015 and his failure to appear on 5 November 2015.

   (9)That all extant applications be otherwise dismissed.

   (10)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 February 2016.

Associate:  Alison Power

Date:  11 February 2016